U.S. businesses, USCIS settle a class-action lawsuit on unlawful denial of H-1B Petitions

by PDM STAFF

NEW YORK – Magistrate Judge Susan van Keulen of the federal district court in the Northern District of California approved a settlement in a class-action lawsuit challenging U.S. Citizenship and Immigration Services’ pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analyst positions filed by businesses in the United States.

Judge Susan van Keulen | Photo Court’s Website

In MadKudu Inc. et al. v. USCIS, the parties reached a settlement agreement that corrects the agency’s misinterpretation of the Occupational Outlook Handbook (OOH) —a Department of Labor’s Bureau of Labor Statistics publication profiling hundreds of occupations in the U.S. job market. Based on its prior interpretation of the OOH, USCIS erroneously determined that market research analysts did not qualify as a “specialty occupation.” The settlement agreement changes this agency error and provides U.S. employers who are eligible the opportunity to request that USCIS reopen and re-adjudicate their denied H-1B petitions.

On Aug. 30, 2021, the court preliminarily approved the parties’ settlement agreement. The court scheduled a fairness hearing for Oct. 19, 2021, and class members had until Oct. 4, 2021, to file objections to the proposed settlement agreement.

The court approved the settlement agreement on Oct. 19, 2021.

Leslie K. Dellon | Photo via LK Dellon Website

“This settlement is an important victory that will benefit hundreds of American businesses and the market research analysts they sought to employ,” said Leslie K. Dellon, senior attorney (business immigration) at the American Immigration Council. “The settlement gives U.S. businesses another chance to have their H-1B market research analyst petitions approved—this time under new guidance worked out by the parties to the lawsuit. Each H-1B petition reopened and approved will represent another opportunity for U.S. employers and the workers they sponsored to advance their business objectives.”

To be a class member, a U.S. employer must have filed a market research analyst H-1B petition from Jan. 1, 2019, through Oct. 19, 2021. USCIS must have then denied the petition based on a finding that the OOH entry—as it existed on Oct. 19— failed to establish that market research analyst is a “specialty occupation,” and, but for USCIS’ finding regarding the OOH entry, the H-1B petition would have been approved.

The American Immigration Council, the American Immigration Lawyers Association (AILA), and the law firms Van Der Hout LLP, Berry Appleman & Leiden LLP (formerly Joseph & Hall P.C.), and Kuck Baxter Immigration LLC represented the plaintiffs.

“I am forever grateful for the courage of the class representatives who not only challenged their own denials but carried the torch for an entire class of employers who had received erroneous H-1B denials. AILA and its members applaud this incredible act of selflessness from our plaintiffs and the expertise of our co-counsel,” said Jesse Bless, director of federal litigation at the American Immigration Lawyers Association.

“This settlement finally resolves an issue on which immigration lawyers have been battling the government for years. This settlement strikes the right balance between what the regulations actually say and how employers evaluate a candidate’s professional qualifications in the real world. It is our sincere hope that USCIS will now interpret other specialty occupations from a perspective that is in line with what actually happens in the free market,” said Jeff Joseph, partner at Berry Appleman & Leiden LLP.

“It is unfortunate that the only way for USCIS to follow the law and do the right thing is to bring litigation. But, know this—we will be watching for USCIS compliance with this decision, and we will be prepared to pursue litigation for other interpretive violations of written law and regulation that the agency has permitted to occur,” said Charles H. Kuck, managing partner at Kuck Baxter Immigration LLC.

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